Bylaws Of Neoforma.com, Inc.

BYLAWS


OF


NEOFORMA.COM, INC.


2


TABLE OF CONTENTS


Page
---- ARTICLE I CORPORATE OFFICES.............................................................1
1.1 REGISTERED OFFICE.............................................................1
1.2 OTHER OFFICES.................................................................1


ARTICLE II MEETINGS OF STOCKHOLDERS......................................................1
2.1 PLACE OF MEETINGS.............................................................1
2.2 ANNUAL MEETING................................................................1
2.3 SPECIAL MEETING...............................................................2
2.4 NOTICE OF STOCKHOLDERS' MEETINGS..............................................2
2.5 MANNER OF GIVING NOTICE AFFIDAVIT OF NOTICE...................................2
2.6 ADVANCE NOTICE OF STOCKHOLDER NOMINEES AND STOCKHOLDER BUSINESS...............2
2.7 QUORUM........................................................................3
2.8 ADJOURNED MEETING; NOTICE.....................................................4
2.9 CONDUCT OF BUSINESS...........................................................4
2.10 VOTING........................................................................4
2.11 WAIVER OF NOTICE..............................................................5
2.12 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING.......................5
2.13 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS...................5
2.14 PROXIES.......................................................................6
2.15 LIST OF STOCKHOLDERS ENTITLED TO VOTE.........................................6


ARTICLE III DIRECTORS.....................................................................7
3.1 POWERS........................................................................7
3.2 NUMBER OF DIRECTORS...........................................................7
3.3 ELECTION, QUALIFICATION AND TERM OF OFFICE OF DIRECTORS.......................7
3.4 RESIGNATION AND VACANCIES.....................................................8
3.5 PLACE OF MEETINGS: MEETINGS BY TELEPHONE......................................8
3.6 REGULAR MEETINGS..............................................................9
3.7 SPECIAL MEETINGS; NOTICE......................................................9
3.8 QUORUM........................................................................9
3.9 WAIVER OF NOTICE..............................................................9
3.10 BOARD ACTION BY WRITTEN CONSENT WITHOUT AM A MEETING.........................10
3.11 FEES AND COMPENSATION OF DIRECTORS...........................................10
3.12 APPROVAL OF LOANS TO OFFICERS................................................10
3.13 REMOVAL OF DIRECTORS.........................................................10


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TABLE OF CONTENTS


(continued)


Page
---- ARTICLE IV COMMITTEES...................................................................11
4.1 COMMITTEES OF DIRECTORS......................................................11
4.2 COMMITTEE MINUTES............................................................11
4.3 MEETINGS AND ACTION OF COMMITTEES............................................11


ARTICLE V OFFICERS.....................................................................12
5.1 OFFICERS.....................................................................12
5.2 APPOINTMENT OF OFFICERS......................................................12
5.3 SUBORDINATE OFFICERS.........................................................12
5.4 REMOVAL AND RESIGNATION OF OFFICERS: FILLING VACANCIES.......................12
5.5 CHAIRMAN OF THE BOARD........................................................13
5.6 CHIEF EXECUTIVE OFFICE.......................................................13
5.7 PRESIDENT....................................................................13
5.8 VICE PRESIDENTS..............................................................13
5.9 SECRETARY....................................................................14
5.10 CHIEF FINANCIAL OFFICER......................................................14
5.11 ASSISTANT SECRETARY..........................................................15
5.12 ASSISTANT TREASURER..........................................................15
5.13 REPRESENTATION OF SHARES OF OTHER CORPORATIONS...............................15
5.14 AUTHORITY AND DUTIES OF OFFICERS.............................................15


ARTICLE VI INDEMNITY....................................................................15
6.1 THIRD PARTY ACTIONS..........................................................15
6.2 ACTIONS BY OR IN THE RIGHT OF THE CORPORATION................................16
6.3 SUCCESSFUL DEFENSE...........................................................16
6.4 DETERMINATION OF CONDUCT.....................................................17
6.5 PAYMENT OF EXPENSES IN ADVANCE...............................................17
6.6 INDEMNITY NOT EXCLUSIVE......................................................17
6.7 INSURANCE INDEMNIFICATION....................................................17
6.8 THE CORPORATION..............................................................18
6.9 EMPLOYEE BENEFIT PLANS.......................................................18
6.10 CONTINUATION OF INDEMNIFICATION AND ADVANCEMENT OF EXPENSES..................19


ARTICLE VII RECORDS AND REPORTS..........................................................19
7.1 MAINTENANCE AND INSPECTION OF RECORDS........................................19
7.2 INSPECTION BY DIRECTORS......................................................19
7.3 ANNUAL STATEMENT TO STOCKHOLDERS.............................................20


ARTICLE VIII GENERAL MATTERS..............................................................20
8.1 CHECKS.......................................................................20
8.2 EXECUTION OF CORPORATE CONTRACTS AND INSTRUMENTS.............................20
8.3 STOCK CERTIFICATES: PARTLY PAID SHARES.......................................20
8.4 SPECIAL DESIGNATION ON CERTIFICATES..........................................21


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TABLE OF CONTENTS


(continued)


Page
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8.5 LOST CERTIFICATES............................................................21
8.6 CONSTRUCTION: DEFINITIONS....................................................22
8.7 DIVIDENDS....................................................................22
8.8 FISCAL YEAR..................................................................22
8.9 SEAL.........................................................................22
8.10 TRANSFER OF STOCK............................................................22
8.11 STOCK TRANSFER AGREEMENTS....................................................22
8.12 REGISTERED STOCKHOLDERS......................................................23


ARTICLE IX AMENDMENTS......................................................................23


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BYLAWS


OF


NEOFORMA.COM, INC.


ARTICLE I


CORPORATE OFFICES


1.1 REGISTERED OFFICE


The registered office of the corporation shall be in the City of Wilmington, County of New Castle, State of Delaware. The name of the registered agent of the corporation at such location is The Corporation Trust Company.


1.2 OTHER OFFICES


The board of directors may at any time establish other offices at any place or places where the corporation is qualified to do business.


ARTICLE II


MEETINGS OF STOCKHOLDERS


2.1 PLACE OF MEETINGS


Meetings of stockholders shall be held at any place, either within or without the State of Delaware, as may be designated by the board of directors or in the manner provided in these bylaws. In the absence of any such designation, stockholders' meetings shall be held at the registered office of the corporation in the State of Delaware.


2.2 ANNUAL MEETING


The annual meeting of stockholders shall be held each year on a date and at a time designated by the board of directors. In the absence of such designation, the annual meeting of stockholders shall be held on the second Tuesday of May of each year at 10:00 a.m. However, if such day falls on a legal holiday, then the meeting shall be held at the same time and place on the next succeeding business day. At the meeting, directors shall be elected and any other proper business may be transacted.


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2.3 SPECIAL MEETING


A special meeting of the stockholders may be called at any time by the board of directors, or by the chairman of the board, or by the president, or by one or more stockholders holding shares in the aggregate entitled to cast not less than ten percent of the votes at that meeting.


If a special meeting is called by any person or persons other than the board of directors, the request shall be in writing, specifying the time of such meeting and the general nature of the business proposed to be transacted, and shall be delivered personally or sent by registered mail or by telegraphic or other facsimile transmission to the chairman of the board, the president or the secretary of the corporation. No business may be transacted at such special meeting otherwise than specified in such notice. The officer receiving the request shall cause notice to be promptly given to the stockholders entitled to vote, in accordance with the provisions of Sections 2.4 and 2.5 of this Article II, that a meeting will be held at the time requested by the person or persons calling the meeting, not less than ten (10) nor more than sixty (60) days after the receipt of the request. Nothing contained in this paragraph of this Section 2.3 shall be construed as limiting, fixing, or affecting the time when a meeting of stockholders called by action of the board of directors may be held.


2.4 NOTICE OF STOCKHOLDERS' MEETINGS


All notices of meetings with stockholders shall be in writing and shall be sent or otherwise given in accordance with Section 2.5 of these bylaws not less than ten (10) nor more than sixty (60) days before the date of the meeting to each stockholder entitled to vote at such meeting. The notice shall specify the place, date, and hour of the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called.


2.5 MANNER OF GIVING NOTICE AFFIDAVIT OF NOTICE


Written notice of any meeting of stockholders, if mailed, is given when deposited in the United States mail, postage prepaid, directed to the stockholder at his address as it appears on the records of the corporation. An affidavit of the secretary or an assistant secretary or of the transfer agent of the corporation that the notice has been given shall, in the absence of fraud, be prima facie evidence of the facts stated therein.


2.6 ADVANCE NOTICE OF STOCKHOLDER NOMINEES AND STOCKHOLDER BUSINESS


Subject to the rights of holders of any class or series of stock having a preference over the Common Stock as to dividends or upon liquidation,


(i) nominations for the election of directors, and


(ii) business proposed to be brought before any stockholder meeting


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may be made by the board of directors or proxy committee appointed by the board of directors or by any stockholder entitled to vote in the election of directors generally if such nomination or business proposed is otherwise proper business before such meeting. However, any such stockholder may nominate one or more persons for election as directors at a meeting or propose business to be brought before a meeting, or both, only if such stockholder has given timely notice in proper written form of their intent to make such nomination or nominations or to propose such business. To be timely, such stockholder's notice must be delivered to or mailed and received at the principal executive offices of the corporation not less than one hundred twenty (120) calendar days in advance of (i) the date specified in the corporation's proxy statement released to stockholders in connection with the previous year's annual meeting of stockholders, if applicable, or (ii) the date of such annual meeting; provided, however, that in the event that no annual meeting was held in the previous year or the date of the annual meeting has been changed by more than thirty (30) days from the date contemplated at the time of the previous year's proxy statement, notice by the stockholder to be timely must be so received a reasonable time before the solicitation is made. To be in proper form, a stockholder's notice to the secretary shall set forth:


(a) the name and address of the stockholder who intends to make the
nominations or propose the business and, as the case may be, of the
person or persons to be nominated or of the business to be proposed;


(b) a representation that the stockholder is a holder of record of stock
of the corporation entitled to vote at such meeting and, if applicable,
intends to appear in person or by proxy at the meeting to nominate the
person or persons specified in the notice;


(c) if applicable, a description of all arrangements or understandings
between the stockholder and each nominee and any other person or persons
(naming such person or persons) pursuant to which the nomination or
nominations are to be made by the stockholder;


(d) such other information regarding each nominee or each matter of
business to be proposed by such stockholder as would be required to be
included in a proxy statement filed pursuant to the proxy rules of the
Securities and Exchange Commission had the nominee been nominated, or
intended to be nominated, or the matter been proposed, or intended to be
proposed by the board of directors; and


(e) if applicable, the consent of each nominee to serve as director of
the corporation if so elected.


The chairman of the meeting shall refuse to acknowledge the nomination of any person or the proposal of any business not made in compliance with the foregoing procedure.


2.7 QUORUM


The holders of a majority of the stock issued and outstanding and entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum at all meetings of the


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stockholders for the transaction of business except as otherwise provided by statute or by the certificate of incorporation. If, however, such quorum is not present or represented at any meeting of the stockholders, then either (i) the Chairman of the meeting or (ii) the stockholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present or represented. At such adjourned meeting at which a quorum is present or represented, any business may be transacted that might have been transacted at the meeting as originally noticed.


2.8 ADJOURNED MEETING; NOTICE


When a meeting is adjourned to another time or place, unless these bylaws otherwise require, notice need not be given of the adjourned meeting if the time and place thereof are announced at the meeting at which the adjournment is taken. At the adjourned meeting the corporation may transact any business that might have been transacted at the original meeting. If the adjournment is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting.


2.9 CONDUCT OF BUSINESS


The chairman of any meeting of stockholders shall determine the order of business and the procedure at the meeting, including such regulation of the manner of voting and the conduct of business.


2.10 VOTING


The stockholders entitled to vote at any meeting of stockholders shall be determined in accordance with the provisions of Section 2.12 of these bylaws, subject to the provisions of Sections 217 and 218 of the Delaware General Corporation Law (relating to voting rights of fiduciaries, pledgors and joint owners of stock and to voting trusts and other voting agreements).


Except as provided in the last paragraph of this Section 2.9, or as may be otherwise provided in the certificate of incorporation, each stockholder shall be entitled to one vote for each share of capital stock held by such stockholder.


At a stockholders' meeting at which directors are to be elected, each stockholder shall be entitled to cumulate votes (i.e., cast for any candidate a number of votes greater than the number of votes which such stockholder normally is entitled to cast) if the candidates' names have been properly placed in nomination (in accordance with these bylaws) prior to commencement of the voting and the stockholder requesting cumulative voting or any other stockholder voting at the meeting in person or by proxy has given notice prior to commencement of the voting of the stockholder's intention to cumulate votes. If cumulative voting is properly requested, each holder of stock, or of any class or classes or of a series or series thereof, who elects to cumulate votes shall be entitled to as many votes as equals the number of votes which (absent this provision as to cumulative voting) such person would be entitled to cast for the election of directors with


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respect to his shares of stock multiplied by the number of directors to be elected by such person, and that such person may cast all of such votes for a single director or may distribute them among the number to be voted for, or for any two or more of them, as such person may see fit.


2.11 WAIVER OF NOTICE


Whenever notice is required to be given under any provision of the Delaware General Corporation Law or of the certificate of incorporation or these bylaws, a written waiver, signed by the person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the stockholders, directors, or members of a committee of directors need be specified in any written waiver of notice unless so required by the certificate of incorporation or these bylaws.


2.12 STOCKHOLDER ACTION BY WRITTEN CONSENT WITHOUT A MEETING


Unless otherwise provided in the certificate of incorporation, any action required to be taken at any annual or special meeting of stockholders of a corporation, or any action that may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted.


Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. If the action which is consented to is such as would have required the filing of a certificate under any section of the Delaware General Corporation Law if such action had been voted on by stockholders at a meeting thereof, then the certificate filed under such section shall state, in lieu of any statement required by such section concerning any vote of stockholders, that written notice and written consent have been given as provided in Section 228 of the Delaware General Corporation Law.


2.13 RECORD DATE FOR STOCKHOLDER NOTICE; VOTING; GIVING CONSENTS


In order that the corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to express consent to corporate action in writing without a meeting, or entitled to receive payment of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the board of directors may fix, in advance, a record date, which shall not be more than sixty (60) nor less


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than ten (10) days before the date of such meeting, nor more than sixty (60) days prior to any other action.


If the board of directors does not so fix a record date:


(i) The record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held.


(ii) The record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no prior action by the board of directors is necessary, shall be the first date on which a signed written consent is delivered to the corporation.


(iii) The record date f ...